Federal Farm Promotion (“Check-Off”) Programs Page: 4 of 5
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CRS-4
The Supreme Court issued its most recent decision on May 23, 2005. The case,
Johanns v. Livestock Marketing Association, stems from a ruling on June 21, 2002, by a
U.S. district court in South Dakota that the national beef check-off violates the First
Amendment by forcing producers "to pay, in part, for speech to which the plaintiffs
object." The district court further ruled in the case that the generic advertising conducted
under the Beef Promotion and Research Act and the ensuing Beef Order is not
government speech. The 8th Circuit Court of Appeals announced that it would not
reconsider the district court's ruling. The federal government appealed to the Supreme
Court, which heard oral arguments on December 8, 2004.
On beef, the federal government argued a point that the Justices had not considered
in the mushroom case: that check-off messages constitute government speech, and so are
not susceptible to a First Amendment challenge. The Supreme Court, in a 6-3 decision,
ruled in favor of the government, upholding the program. The Court stated, in part:
The message set out in the beef promotions is from beginning to end the message
established by the Federal Government. Congress had directed the implementation
of a "coordinated program" of promotion, "including paid advertising, to advance the
image and desirability of beef and beef products." Congress and the Secretary have
also specified, in general terms, what the promotional campaigns shall contain....
Thus, Congress and the Secretary have set out the overarching message and some of
its elements, and they have left the development of the remaining details to an entity
whose members are answerable to the Secretary (and in some cases appointed by him
as well).6
The Supreme Court majority also rejected check-off opponents' argument that the
program does not qualify as government speech because it is funded by a targeted
assessment rather than by general revenues (e.g., taxes). "Citizens may challenge
compelled support of private speech, but have no First Amendment right not to fund
government speech. And that is no less true when the funding is achieved through
targeted assessments devoted exclusively to the program to which the assessed citizens
object," the Court concluded. It observed that "the beef advertisements are subjected to
political safeguards more than adequate to set them apart from private messages":
The program is authorized and the basic message prescribed by federal statute, and
specific requirements for the promotions' content are imposed by federal regulations
promulgated after notice and comment. The Secretary of Agriculture, a politically
accountable official, oversees the program, appoints and dismisses key personnel, and
retains absolute veto power over the advertisements' content, right down to the
wording. And Congress, of course, retains oversight authority, not to mention the
ability to reform the program at any time. No more is required.7
In a May 23, 3005, press release, Secretary of Agriculture Johanns said that he was
pleased with the decision. He added that the beef check-off will continue without
interruption and that the department is studying the legal implications for other check-offs
6 Johanns v. Livestock Marketing Assn. and Nebraska Cattlemen v. Livestock Marketing Assn.
(Nos. 03-1164 and 03-1165).
7 Ibid.
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Becker, Geoffrey S. Federal Farm Promotion (“Check-Off”) Programs, report, May 24, 2005; Washington D.C.. (https://digital.library.unt.edu/ark:/67531/metadc820820/m1/4/?q=95-353: accessed April 25, 2024), University of North Texas Libraries, UNT Digital Library, https://digital.library.unt.edu; crediting UNT Libraries Government Documents Department.